Lexpert Special Editions

Special Edition on Energy 2017

The Lexpert Special Editions profiles selected Lexpert-ranked lawyers whose focus is in Corporate, Infrastructure, Energy and Litigation law and relevant practices. It also includes feature articles on legal aspects of Canadian business issues.

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WWW.LEXPERT.CA | 2017 | LEXPERT 11 Clark, Heidi Dentons Canada LLP (416) 863-4626 heidi.clark@dentons.com Ms. Clark is a partner and department manager in the Toronto office of the firm's Banking and Finance Group. Her practice includes advising domestic and foreign financial institutions, institutional investors, corporate and institutional borrowers and governments on a broad range of complex and structured financing transactions. Christian, Jeff Lawson Lundell LLP (604) 631-9115 jchristian@lawsonlundell.com Mr. Christian is a litigation partner in the Vancouver office of Lawson Lundell LLP, with a practice focused on energy and regulated utilities. He represents utilities, power marketers and consumer groups in proceedings before administrative tribunals such as the BCUC, the AUC and the NEB. He was named Energy Regulatory Law Lawyer of the Year in Vancouver for 2013 by Best Lawyers in Canada. Chatwin, Keith R. Stikeman Elliott LLP (403) 266-9088 kchatwin@stikeman.com Mr. Chatwin is a partner in the Capital Markets and Mergers & Acquisitions Groups with an emphasis on Energy transactions. His practice involves a broad array of energy matters, and securities and general corporate transactions, ranging from public and private debt and equity financing to mergers & acquisitions, corporate restructuring and recapitalizations and shareholder activism and defence. Chamberlain, Adam Gowling WLG (416) 369-7223 adam.chamberlain@gowlingwlg.com Mr. Chamberlain is active in the firm's Northern Practice, Indigenous Law and Environmental Groups. He advises developers, governments and Indigenous enterprises on energy projects across Canada and in northern remote communities. Certified as a Specialist in Environmental Law, his practise is focused on environmental, Indigenous and regulatory requirements for infrastructure and other projects. Carson, Lorne W. Osler, Hoskin & Harcourt LLP (403) 260-7083 lcarson@osler.com Mr. Carson, also an engineer, focuses on domestic and international project development and finance in the oil and gas, electrical power and other infrastructure sectors. His experience embraces multi-party and joint ventures. Buttigieg, Bryan J. Miller Thomson LLP (905) 532-6637 bbuttigieg@millerthomson.com Certified as a Specialist in Environmental Law by The Law Society of Upper Canada, Mr. Buttigieg has expertise in civil litigation, regulatory defence, due diligence, compliance, environmental approvals, brownfields development & contaminated land. LEXPERT-RANKED LAWYERS its secured creditors is in conflict with the federal bankruptcy and insolvency laws and is therefore inoperative to the extent of the conflict." e Redwater decision is a continuation of a series of cases that allocate liability when envi- ronmental and insolvency law intersect, says Al- exandria Pike, a Toronto-based environmental and energy partner with Davies Ward Phillips & Vineberg LLP. She says this intersection "has been described by the courts as 'messy' but the decisions consistently support the paramountcy of Canada's insolvency laws, regardless of the extent of envi- ronmental risk." In Pike's view, although the Redwater deci- sion may appear as a new issue, it expands on the principles of the Newfoundland and Labrador v. AbitibiBowater, 2012 SCC 67 and Nortel Net- works Corp. (Re), 2013 ONCA 599, "cases that prevent a regulator from jumping the queue and demanding [100 cents on the dollar] for environ- mental issues. While companies must satisfy their well closure obligations during the course of opera- tions, the regulator cannot impose such liabilities on an insolvent company, whether or not there is a significant environmental impact." e implications for Alberta's energy industry are diverse and wide-ranging. In July 2017, the AER applied to the SCC for leave to appeal. Buck- ingham says, if leave is not granted, or the appeal court decision is upheld by the SCC, "the interests of the lending community to maximize recovery for secured creditors will have priority over the regulator's rights to enforce end-of-life obligations through bankruptcy." e result of such a finding will mean that the industry will be responsible to fund a greater share of such liabilities, says Buckingham. Obligations associated with the renounced properties will fall principally to the oil and gas industry through annual levies collected by the Orphan Well Asso- ciation (OWA) to conduct reclamation and reme- diation activities. "While the OWA can assert that costs of performing such activities are provable claims in bankruptcy against the debtor," she says, "the proceeds of sale of the debtor's valuable assets are oen insufficient to repay both the secured and all unsecured debts of the debtor." Cherry-pick Assets e Alberta Energy Regulator (AER), in Bul- letin 2016-16, responded to Redwater by requir- ing a higher liability management rating (LMR). is rating prevents prospective acquirers that are deemed financially unstable from obtaining a transfer of well licences. e regulator also re- quired that that all applications for licence eligi- bility be considered and processed as non-routine, says Christopher Nixon, a partner with Stikeman Elliott LLP in Calgary. In light of the Redwater

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